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Re-posting of online photograph on another website infringed copyright (ECJ)

The ECJ, ruling on a question referred by the German courts, has held that the concept of communication to the public in Article 3(1) of the Copyright Directive (2001/29/EC) covers the posting on one website of a photograph previously posted, without any restriction preventing it from being downloaded and with the copyright owner’s consent, on another website.

It held that the posting of the copyright work on another website, in the circumstances at issue, had to be treated as making the work available to a new public; the public taken into account by the copyright owner when they consented to the communication of their work on the website on which it was originally published was composed solely of users of that site and not of users of the website on which the work was subsequently published without the copyright owner’s consent, or other internet users.

The ECJ said that Svensson v Retriever Sverige (Case C-466/12) EU:C:2014:76, in which it held that providing on a website clickable links to works freely available on another website did not result in a communication to a new public under Article 3(1) did not apply. The court’s reasons included that hyperlinking to content freely available on the internet with the copyright owner’s consent did not interfere with their preventative rights under Article 3(1) because the copyright owner could remove their work, rendering the hyperlink obsolete, while the re-posting by a third party of a copyright work on another website might make it impossible, or at least much more difficult, for the copyright owner to stop the communication of the work. Further, hyperlinks contributed to the sound operation of the internet by enabling dissemination of information, while re-posting content from one website to another did not do so to the same extent, so that allowing it without the copyright owner’s consent under Article 3(1) would not be drawing a fair balance between the competing rights of copyright owners and internet users.

The ECJ’s decision provides important confirmation of copyright owners’ rights to control the communication of copyright works which they post online, even if they do not impose explicit restrictions on the reproduction or re-use of those works. Conversely, for third parties wishing to exploit online works, the decision underlines the importance of obtaining appropriate clearances, even if restrictions on re-use have not been imposed. (Land Nordrhein-Westfalen v Renckhoff (Case C-161/17) EU:C:2018:634 (7 August 2018).)

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